Fidelholtz v. Peller

Cook, J.,

dissenting. Because a majority of this court misinterprets former R.C. 2307.32(F) of Ohio’s Contribution Among Tortfeasors Act (“CATA”), I respectfully dissent.

The majority pins its conclusion that setoff should not be permitted in this case on a mistaken interpretation of the phrase “liable in tort.” The majority interprets that phrase as requiring a tort defendant against whom judgment has *204been entered to affirmatively demonstrate that a settling party acted tortiously and contributed to the plaintiffs damages as a prerequisite to enforcing its right of setoff under former R.C. 2307.32(F). Apparently, the majority would require a mini-trial to determine the settling party’s culpability in the absence of some admission of the settling, party’s fault, either by stipulation or in the settlement agreement. Such a requirement finds no support in the statutory scheme and is contrary to this court’s reasoned holding in Ziegler v. Wendel Poultry Serv., Inc. (1993), 67 Ohio St.3d 10, 615 N.E.2d 1022, the majority view of courts analyzing similar legislation,3 and the Restatement of Torts.4

Black’s Law Dictionary definitions of “liable” and “liability” demonstrate that the concept is broadly defined to encompass both the ultimate legal responsibility for an act and the potential of being held legally responsible for an act. Black’s Law Dictionary (6 Ed.1990) 914, 915. Accordingly, we need to determine which definition the legislature intended in its specific use of “liable” from its context and its application in the overall statutory scheme.

Under either definition, this court’s decision in MetroHealth Med. Ctr. v. Hoffmann-LaRoche, Inc. (1997), 80 Ohio St.3d 212, 685 N.E.2d 529, was wrong. After the applicable statute of limitations has run against an alleged tortfeasor, even the potential for being held legally responsible is gone. Accordingly, where a statute of limitations prohibits a plaintiff from commencing an action against an alleged tortfeasor, that party’s liability cannot be “extinguished” by a later release. MetroHealth, 80 Ohio St.3d at 217, 685 N.E.2d at 534 (Cook, J.,dissenting).

Although either of. Black’s definitions supports the dissent in MetroHealth, this case requires us to choose. The majority interprets the phrase “liable in tort” to require a party seeking setoff under former R.C. 2307.32(F)(1) to affirmatively demonstrate the settling party’s legal responsibility for the plaintiffs injury. In *205cases such as this, however, that interpretation will often enable the plaintiff to receive a double recovery — exactly the outcome that “the statute was clearly designed to prevent.” Ziegler v. Wendel Poultry Serv., 67 Ohio St.3d at 18, 615 N.E.2d at 1030.

The majority attempts to reconcile today’s opinion with Ziegler by noting that the agreement in Ziegler was executed in contemplation of the settling defendant being found jointly and severally liable. The problem with that distinction is that the settlement agreement in this case, like most if not all settlement releases, also contemplates that the settling defendant might otherwise be held legally responsible for the plaintiffs injuries. The only consideration given by the Fidelholtzes in exchange for the settlement proceeds, in fact, was to release and discharge the settling defendant from all liability associated with this action.

The Ziegler court had a tougher question than this case presents. Due to the parties’ “high-low” agreement, the Ziegler court had to determine whether former R.C. 2307.32(F) permitted setoff against a jury award despite the fact that the jury had exonerated the settling defendant. The Ziegler court concluded that setoff was appropriate because, at the time of settlement, the settling defendant potentially was responsible in tort for Ziegler’s death. Id.

At the time of its settlement, the potential remained that Cleveland Clinic Foundation (“CCF”) would be held responsible for the Fidelholtzes’ injuries. CCF bought its peace by obtaining a settlement release. With that release, CCF bought not only an assurance that the Fidelholtzes would not later sue it for the same injury, but also that any other tortfeasor who pays a disproportionate share of the Fidelholtzes’ damages could not seek contribution from CCF. Former R.C. 2307.32(F)(2). The Fidelholtzes, in turn, gained the security of the CCF settlement payment and obviated the risk that they might not be able to prove that CCF was legally responsible for their injuries.

Under the statutory scheme, the Fidelholtzes are entitled only to the amount the jury determined as their total damages. Under former R.C. 2307.32(F)(1), the amount that (unbeknownst to a jury) plaintiffs have received by way of settlement for their injuries is to be offset against a jury’s award, regardless of the settling defendant’s actual culpability. By the same token, a settling defendant exposes all nonsettling defendants to responsibility for the remainder of a damage award that a jury calculates as proper to compensate a plaintiff. This will sometimes result in nonsettling defendants having to pay more than they would have paid had the settling defendant remained a party to the suit or amenable to contribution.

The CATA, when correctly interpreted, allows the victim of a tort to receive a measure of compensation designed to make him or her whole, promotes settlement and judicial economy, and provides a scheme by which joint tortfeasors are *206to share responsibility for their conduct. Because the scheme favors settlement, some tortfeasors might escape paying damages in direct proportion to their degree of fault. That is, however, a compromise that the legislature intended. The CATA is not designed, nor should it be interpreted, to afford double recovery and encourage lawsuit abuse.

The majority’s gloss on the statutory scheme gives plaintiffs incentive to sue parties whose legal responsibility for the plaintiffs’ injuries is doubtful. As noted by the majority, defendants settle for many reasons other than the likelihood of an adverse verdict, including the avoidance of bad publicity and litigation costs, and the maintenance of favorable commercial relationships. If sums received from these settlements are permitted to augment the amount that a jury determines to be proper compensation for the injury, plaintiffs are encouraged to sue as many entities as possible in hopes that parties who would likely prevail at trial might settle for other reasons.

Finally, whatever may be said for the reasoning that supports the judicially created collateral source rule, we cannot assume that the General Assembly intended its incorporation by analogy when drafting the CATA. The collateral source rule has at its base an assumption that a defendant wrongdoer should not “ ‘get the benefit of payments that come to the plaintiff from a “collateral source.” ’ ” Pryor v. Webber (1970), 23 Ohio St.2d 104, 108, 52 O.O.2d 395, 397, 263 N.E.2d 235, 238, quoting 2 Harper & James, The Law of Torts (1956), Section 25.22. The majority engrafts this principle onto former R.C. 2307.32(F) by holding that the phrase “liable in tort” requires a demonstration that a settling party, in fact, tortiously contributed to the plaintiffs injuries before setoff is permitted. Unlike collateral source benefits, which traditionally include insurance proceeds, sick benefits and gratuitous contributions, a plaintiff extracts a litigation settlement from the settling party by accusing that party of causing the plaintiffs injuries. Accordingly, it is proper that sums received from such settlements should be offset against a jury award that is designed to make the plaintiff whole for those same injuries.

Ziegler provides the correct rule of law and should control this action. Accordingly, I would affirm the judgment of the court of appeals.

. See, e.g., Prosser & Keeton, The Law of Torts (5 Ed.1984), Section 49; Quick v. Crane (1986), 111 Idaho 759, 783-784, 727 P.2d 1187,1211-1212.

. 4 Restatement of the Law 2d, Torts (1977) 333, Section 885(3) states:

“A payment by any person made in compensation of a claim for a harm for which others are liable as tortfeasors diminishes the claim against the tortfeasors, at least to the extent of the payment made, whether or not the person making the payment is liable to the injured person and whether or not it is so agreed at the time of payment or the payment is made before or after judgment.”

Comment/to that subsection states in part:

“Payments made by one who is not himself liable as a joint tortfeasor will go to diminish the claim of the injured person against others responsible for the same harm if they are made in compensation of that claim, as distinguished from payments from collateral sources such as insurance, sick benefits, donated medical or nursing services, voluntary continuance of wages by an employer, and the like. These payments are commonly made by one who fears that he may be held liable as a tortfeasor and who turns out not to be.”